After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties' request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.

Defendant was indicted for and pleaded guilty to one count of violating
8 U.S.C. § 1326(a), which prohibits a non-citizen alien from reentering the
United States after deportation. The maximum penalty under the statute is two
years in prison. Subsection (b) of the statute increases the maximum possible
penalty to twenty years in prison if the defendant committed an aggravated felony
before deportation. 8 U.S.C. § 1326(b). Defendant's indictment did not allege
a violation of § 1326(b), nor did it contain language charging that he had
previously committed an aggravated felony.

The district court sentenced defendant to fifty-seven months in prison,
followed by three years of supervised release. That sentence included an
enhancement because defendant had a prior aggravated felony conviction.
On appeal, defendant argues that the maximum prison term to which he is subject
is two years. He contends this limit is consistent with the maximum penalty
contained in § 1326(a), which is both the offense alleged in the indictment and
the offense to which he pleaded guilty. His argument rests on the United States
Supreme Court's recent decision in Apprendi v. New Jersey, 120 S. Ct.
2348
(2000) (to be reported at 530 U.S. 466).

Apprendi held that "[o]ther than the fact of a prior conviction, any fact
that
increases the penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt." Id. at 2362-63
(emphasis added). As defendant acknowledges, and as the language quoted above
makes clear, the Apprendi rule is subject to an explicit exception, one the
Supreme Court intended to shield its earlier decision in Almendarez-Torres v.
United States, 523 U.S. 224 (1998). See Apprendi, 120 S. Ct. at 2361-62.

Interpreting the very statute at issue here, Almendarez-Torres ruled
that the
existence of a prior conviction is merely a sentencing factor, not a separate
element of the offense to which the full panoply of due process protections attach.
Id. at 235. As a consequence, the twenty-year prison term set forth in 8 U.S.C.
§ 1326(b) may apply even where the indictment failed to allege that the defendant
had a prior aggravated felony conviction. Id. at 226-27, 235.

Despite expressing misgivings about whether Almendarez-Torres was
correctly decided, Apprendi specifically refused to overrule the earlier decision.
See Apprendi, 120 S. Ct. at 2362 (stating "[e]ven though it is arguable that
Almendarez-Torres was incorrectly decided . . . we need not revisit it for purposes
of our decision today to treat the case as a narrow exception to the general rule
we recalled at the outset"). Moreover, this court has published two opinions since
Apprendi stating that Almendarez-Torres remains binding authority
within this
circuit. See United States v. Martinez-Villalva, 232 F.3d 1329, 1332 (10th Cir.
2000) and United States v. Dorris, 236 F.3d 582, 587 (10th Cir. 2000). As we
have said before, one panel of this court cannot overrule a decision of another
panel. United States v. Hargus, 128 F.3d 1358, 1364 (10th. Cir. Cir. 1997).

Defendant informs that he brings his appeal in part to preserve an argument
for the Supreme Court. He has done so. It remains our duty, however, to decide
his case under the rule announced in Almendarez-Torres. The judgment of the
United States District Court for the District of Colorado is AFFIRMED.

FOOTNOTESClick footnote number to return to corresponding location in the text.

*. This order and judgment is not binding
precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.